Trayhern v. Colburn

Miller, J., delivered the opinion of the Court. The first appeal in this case is reported in 63 Md., 99 . The new trial was had under an agreement waiving all errors in pleading and authorizing the admission of any evidence that would be admissible upon any state of the pleadings. By the original and amended hill of particulars, Mrs. Trayhern, the plaintiff, claims that $11,176.62 was due to her hy Sophia E. Stimpson, the testatrix, for royalties received by said Sophia in her life-time from an ice pitcher patent in which the plaintiff claimed an interest, and for moneys advanced by the plaintiff to the deceased.

After the plaintiff had offered evidence tending to prove her claims, the defendant offered in evidence the records of two cases in the Circuit Court of Baltimore City, and thereupon the Court instructed the jury in effect that these records and the decree of the 10th of December, 1878, and the order of the 15th of May, 1879, passed in one of the cases, conclusively established that the defendant as executor of the said Sophia, owed nothing to the plaintiff, and that hy this decree and order the plaintiff is estopped from asserting any of the claims set out in her bill of particulars. The present appeal brings up for review the correctness vel non of this instruction. The law as to the conclusiveness of a former judgment between the same parties has been settled by many decisions in Maryland, and we need not look elsewhere for authorities upon that subject. It is not necessary that issue should have been taken on the precise point which is controverted in the second case; it is sufficient if that point was essential to the finding of the former judgment, and such judgment is conclusive when given in evidence though not pleaded hy way of estoppel.

Whitehurst vs. Rogers, 38 Md., 503 . It is only necessary to prove that the subject-matter of the two suits is substantially the ²⁷⁹ same. Harryman vs. Roberts, 52 Md., 74 . A decree is res adjudicaia in respect to all matters of defence existing and which were available to the defendant at its date, and even an ex parte decree upon a mortgage under the Act of 1833, ch. 181, is conclusive as against inquiry in another Court and in another case into the question of fraud in obtaining the mortgage.

McDowell vs. Goldsmith, 2 Md. Ch. Dec., 370, affirmed in 6 Md., 319 . No recovery can be had on a cause of action which has been pleaded or offered in evidence as a defence in a former proceeding between the same parties, in which it was legally admissible, although the Court may have erred in excluding it from the jury. Beall vs. Pearre, 12 Md., 550 .

The doctrine extends not only to the questions of law and of fact which were decided in the former suit, but also to the grounds of recovery or defence which might have been but were not presented. State vs. Brown, 64 Md., 199 . Nor does it make any difference that the first case was decided on bill or petition and answer without testimony. State, use of Bruner vs. Ramsburg, 43 Md., 325 ; Cone vs. Building Society, 40 Md., 386 .

These are some of the Maryland decisions on this subject, and it remains to be determined whether the present case falls within the principles thus established. The records in the equity cases referred to show that in August, 1878, Colburn, as executor of Sophia E. Stimpson, filed his bill against Mrs. Trayhern and others in which, among other matters, he charged that Mrs. Trayhern, had borrowed from his testatrix the sum of §4585.48, and as partial security therefor had assigned or agreed to assign a mortgage and note of one Charles W. Hamill, and wife, for §3000, but that the assignment thereof was defective, and prayed among other things that Mrs. Trayhern and her husband might be required to execute a proper assignment of this mortgage and note. In her answer to this bill Mrs. Trayhern denies that she ever borrowed this sum ²⁸⁰ of $4585.48 from Miss Stimpson, but on the contrary avers, that she took the sum of $3000, at the request of the said Sophia as part of- what was then due and owing to this respondent from the said Sophia, to remain as a loan in the hands of this respondent until a settlement was had between them, and which was never had in the life-time of the said Sophia ; that she also took another sum of $885.48-also to remain as a loan under the same state of circumstances ; and that at the time of her death the said Sophia well knew that upon a settlement of accounts between them she would be largely indebted to this respondent. She admits that she proffered to the said Sophia, the Hamill mortgage as collateral security for the $3000 which the latter declined, and she avers, that without request she passed to her the mortgage note for that sum also as collateral.

She then denies any